The opinion
Sundermann, Judge,
dissenting.
The facts in this case are undisputed. Appellee was living with his girlfriend, who gave birth to a child. He admitted paternity and waived any rights to a DNA test. Three years later, he petitioned the court to have the test taken at his expense, and this was granted. The DNA test conclusively proved that appellee is not the father of the child. He was current in his child support at the time. Appellant and the majority say that appellee’s motion must be brought under Civ.R. 60(B)(1), (2), and (3), and since it was filed after more than a year, it must be denied. They cite
Strack v. Belton
(1994), 70 Ohio St.3d 172 , 637 N.E.2d 914 .
Here the trial court found that Civ.R. 60(B)(4) applied in this case. That rule provides for vacating a judgment if “it is no longer equitable that the judgment should have prospective application.” This clearly seems to be the section of the rule that should be applied. Appellee is not asking that support already paid should be refunded, but only that he should not be required to pay support in the
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future for a child that is conclusively not his. To require him to pay an additional $43,000 in child support would be unconscionable. The name of the real father is in possession only of the mother, and she should not benefit further from the appellee.
In
Strack ,
the court says that judges are required to “consider the. two conflicting principles of finality and perfection.” No such decision is required here; perfection would be refunding to appellee all monies paid to date. This he is not seeking. He only requests that he not be required to pay support in the future for a child that is conclusively not his. Applying Civ.R. 60(B)(4) would correct this manifest injustice. I respectfully dissent from the majority’s refusal to do so.